Summary: The Ombudsman will not investigate Ms B’s complaints about the condition of the pavements and roads near her home. It is reasonable to expect Ms B to use her right of remedy in the courts if she believes the Council has failed to meet its duty to maintain the highway.

The complaint

1. The complainant, whom I shall call Ms B, complains the Council is not properly maintaining pavements and roads she regularly uses. Ms B says the roads have potholes and the pavements have uneven surfaces. Ms B is a pedestrian and cyclist and says her mother uses a motorised wheelchair. Ms B says the surfaces are unsafe and also complains the Council failed to properly respond to her enquiries and complaints.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I have considered the information Ms B provided and the Council’s responses to her complaints. I sent a draft decision to Ms B and considered the comments she made in reply before I made my final decision.

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What I found

5. Under Section 41 of the Highways Act 1980, the Council has a duty to maintain highways maintainable at the public expense. The definition of a highway includes the pavement running alongside a road and any footpaths for which the Council is responsible.
6. While Ms B is unhappy with the condition of some roads and pavements she uses, the Ombudsman will not investigate this complaint. Whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretations of the law. This is not a matter for the Ombudsman.
7. If Ms B believes the Council has failed in its duty to maintain the Highway, she may serve notice on the Council to carry out repairs. Should it fail to do so, Ms B may then apply to the magistrates’ court for an order under section 56 of the Highways Act 1980 requiring it to take action. The Council would be bound by any order made by the magistrates’ court and it is therefore reasonable to expect Ms B to use the alternative remedy available to her.
8. The Council has acknowledged it should have replied to Ms B’s enquiries and complaints sooner and in more detail. There is nothing the Ombudsman could achieve by considering this part of Ms B’s complaint further.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Ms B to use her right of remedy in the courts if she believes the Council has failed to meet its duty to maintain the highway.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman